[2008] KEHC 150 (KLR)
The court found that the existence of a written will by the deceased, which was not disclosed or considered in the initial petition for letters of administration intestate, rendered the grant issued to Simon Macharia Ngaragari defective. The law requires that where a valid will is discovered, the administration of...
Source-derived case information.
- Citation
- [2008] KEHC 150 (KLR)
- Parties
- Petitioner: Joseph Karugi Ngaragari; Objector: Simon Macharia Ngaragari; Objector: Macharia Ngaragari; Objector: Nderitu Ngaragari; Objector: Karoki Ngaragari
- Court
- High Court
- Court Station
- High Court at Nyeri
- Jurisdiction
- Kenya
- Case Number
- Miscellaneous Succession Cause 51 of 2001
- Procedural Posture
- Succession Cause / Judgment
- Outcome
- grant revoked; leave for fresh petition with will attached; no order as to costs
- Judges
- MM Kasango
- Legal Topics
- Succession, Grant of Letters of Administration, Revocation of Grant, Probate, Wills
- Source Language
- en
Source-derived case record
Summary, issues, holding and outcome
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Parties
Joseph Karugi Ngaragari
Petitioner
Simon Macharia Ngaragari
Objector
Macharia Ngaragari
Objector
Nderitu Ngaragari
Objector
Karoki Ngaragari
Objector
Procedural Posture
Succession Cause / Judgment
Legal Issues
- 1 Whether the grant of letters of administration issued to Simon Macharia Ngaragari should be revoked in light of the disclosure of a written will.
- 2 Whether a fresh petition for letters of administration with the will attached should be filed.
Ratio Decidendi
The court found that the existence of a written will by the deceased, which was not disclosed or considered in the initial petition for letters of administration intestate, rendered the grant issued to Simon Macharia Ngaragari defective. The law requires that where a valid will is discovered, the administration of the estate must proceed in accordance with the will. Therefore, the grant issued without reference to the will could not continue to subsist. The court revoked the grant and directed that a fresh petition be filed with the will attached, ensuring that the estate is administered according to the deceased's wishes as expressed in the will.
Court Disposition
grant revoked; leave for fresh petition with will attached; no order as to costs
Orders
- The grant issued to Simon Macharia Ngaragari on 22nd June 2001 is hereby revoked.
- Leave is hereby granted for a fresh petition to be filed for Letters of Administration to be issued with will attached.
Full Case Text
Judgment text and source record
17 paragraphs
REPUBLIC OF KENYA IN THE HIGH COURT OF KENYA AT NYERI
Succession Cause 51 of 2001
IN THE MATTER OF THE ESTATE OF HOSEA NGARAGARI….…. DCD
AND
JOSEPH KARUGI NGARAGARI…………….........…………...PETITIONER
VERSUS
1. MACHARIA NGARAGARI )…...............……………….. 1ST OBJECTOR
2. NDERITU NGARAGARI )……………................………2ND OBJECTOR
3. KAROKI NGARAGARI )……………………3RD OBJECTOR
JUDGMENT
In this estate there were two petitions in respect of Hosea Ngaragari alias Ngaragari Karugi deceased. At Karatina Magistrate’s court Succession No. 8 of 2001 Simon Macharia Ngaragari petitioned for grant of letters of administration in respect of that estate. A grant was issued to him on 22nd June 2001. In the High Court at Nyeri Succession Cause No. 51 of 2001 Joseph Karugi Ngaragari petitioned for grant of Letters of Administration intestate in respect of the same estate. The High Court ordered for the RM’S Succession Cause No. 8 of 2001 at Karatina to be transferred to Nyeri High Court and be consolidated with this cause. Joseph Karugi Ngaragari filed an affidavit of protest to an application for confirmation of grant filed by Simon Macharia Ngaragari. At the hearing of that protest Simon filed a written will of the deceased and prayed that distribution be in accordance with that written will. The will was written in Kikuyu language and its English translation was attached. In view of the disclosure of that will I am of the view that the grant issued to Simon Macharia cannot continue to subsist. There is need for another petition to be filed with the will attached. In view of that the court cannot determine the protest raised herein to the grant of letters of administration. The judgment of this court is:-
1. That the grant issued to Simon Macharia Ngaragari on 22nd June 2001 is hereby revoked.
2. Leave is hereby granted for fresh petition to be filed for Letters of Administration to be issued with will attached.
3. There shall be no orders as to costs.
Dated and delivered at Nyeri this 8th day of October 2008.
MARY KASANGO
JUDGE